This case involves a homicide which took place in July of 1983 when a man was
shot to death in a Chicago tavern. A bartender, who did not see the actual shooting,
did see this defendant and the victim, a frequent customer, talking just before the
event. After the shooting, he saw the body on the floor and, outside, "saw the person
running." The defendant was arrested the next day and a preliminary hearing was
held at which the bartender testified. The circuit court of Cook County found
probable cause and set the case for further proceedings, but defendant failed to appear
on the date set for his arraignment. A warrant was issued for his arrest, but it was
accidentally purged from the system. Based on a 2006 tip from a man who said that
he had seen his cousin's killer, the defendant was located in Burbank in 2007 and
arrested. Meanwhile, the bartender had been deported in 1984.

In a bench trial, the defendant was convicted of first degree murder and was
sentenced to 20 years in prison. At his trial, there was testimony from the police
detective who first responded to the scene and from two other individuals who saw
comings and goings in the neighborhood outside the tavern. Each of these
neighborhood bystanders had seen a man with a gun, and, in police station lineups,
had identified that man as the defendant. However, there were no in-court
identifications.

The prosecution asked for and received permission to, introduce at trial the 1983
preliminary hearing testimony of the bartender-witness who had been deported. After
the conviction, this issue was raised in posttrial proceedings in which it was alleged
that use of the preliminary hearing testimony of the now-unavailable bartender
violated the constitutional right to confront. The posttrial motion was denied and
defendant sought review in the appellate court. At that level, he obtained a reversal
and a remand, with the appellate court finding that the defect was not harmless as a
matter of evidentiary law. The State appealed.

In this decision, the supreme court affirmed the appellate court, but it did so on
the basis that defendant had been denied his constitutional right to adequately cross-examine. For one thing, when the witness testified at the preliminary hearing,
discovery in the form of inconsistent statements the witness made to police was not
available to defense counsel for use in cross-examination. In addition, the record of
the preliminary hearing did not show the constitutionally required adequate
opportunity for cross-examination. The preliminary hearing commenced amidst an
obviously crowded docket. The supreme court expressed concern about the
atmosphere in which the cross-examination was conducted, in which the court made
it clear to defense counsel that the court was not enthusiastic about proceeding
immediately with the preliminary hearing. Cross-examination of the bartender was
brief, and the court placed restrictions-overt and covert-on it, seeming to send a
message to defense counsel to wrap it up. The supreme court said that "it is clear
from the record that counsel would have done more with the witness *** if he had
felt free to do so." It could not be said that counsel was afforded the degree of cross-examination which is constitutionally required. Admitting the testimony was,
therefore, error, and it was not harmless.